State v. Cathey

Appeal
from the Circuit Court for Crockett County No. 4258 Clayburn
Peeples, Judge

The
Defendant, Dustin Michael Cathey, was convicted by a Crockett
County Circuit Court jury of first degree felony murder and
second degree murder. The second degree murder conviction
merged into the conviction for felony murder, and the trial
court imposed a life sentence. On appeal, the Defendant
argues that the trial court erred in including language
regarding criminal responsibility for the conduct of another
in its jury charge, and he also argues that the evidence is
insufficient to sustain his convictions. After review, we
affirm the judgments of the trial court.

Alan
E. Glenn, J., delivered the opinion of the court, in which
John Everett Williams, P.J., and Timothy L. Easter, J.,
joined.

OPINION

ALAN
E. GLENN, JUDGE

FACTS

The
Defendant was indicted for first degree premeditated murder
and first degree felony murder in the death of the
eighty-nine-year-old victim, Frances Lilley. The State
requested that the Defendant's trial be joined with the
trial of Daniel Parker. The trial court found that the
Defendant and Mr. Parker could have been jointly indicted,
but the court denied the motion after finding that the
Defendant had shown clear prejudice from a joint trial. The
Defendant's case proceeded to trial.

State's
Proof

Through
the testimony of John Cole, telecom operations manager for
TEC, the State introduced records from the victim's
telephone, which included calls that were dialed, received,
and misdialed during the time surrounding the murder. Robert
Howell, keeper of records for Crockett County 911,
authenticated the 911 call made by Alymer Lilley, the
victim's husband, reporting the murder, and it was played
for the jury. Mr. Howell believed that the call came in about
two minutes before midnight on August 4, 2011.

Bobby
Vaughn, the victim's brother, testified that Mr. Lilley
was alive at the time of the victim's murder but had
since passed away. Mr. Lilley suffered from dementia and the
victim took care of him. His dementia often caused him to
have some confusion. They lived on farmland in the country.

Jim
Knox, Chief of Police for the city of Alamo, testified that
he responded to the 911 call to the victim's house,
possibly sometime after 11:00 p.m. He recalled that there
were a number of fields around the victim's home, and the
area was "pretty dark" at night. Upon entering the
home, the police found Mr. Lilley sitting in a chair, and the
deceased victim was lying on the floor. The victim's body
was cool to the touch. Chief Knox left the scene five or ten
minutes later when the ambulance personnel and coroner
arrived. Chief Knox said that Deputy Parks also responded to
the scene, but he had suffered a stroke since the murder and
was therefore unable to testify at trial.

Dr.
Marco Ross, the Deputy Chief Medical Examiner for the West
Tennessee Regional Forensic Center, performed the autopsy on
the victim. The victim suffered from two gunshot wounds, one
in her neck and one in her right shoulder. The gunshot to the
victim's neck was the fatal wound. She also sustained rib
fractures, which Dr. Ross surmised may have been caused by
the gunshot or by falling after being shot. A bullet was
recovered from the victim's upper back. Dr. Ross said
that it appeared the victim had been shot from a distance,
but he could not tell from how far. He could only surmise
from the lack of gunpowder on her body that she was shot from
a distance greater than 3 or 4 feet.

Tennessee
Bureau of Investigation ("TBI") Agent Phillip
Cicero led a team of investigators in the victim's murder
investigation. Agent Cicero and his team arrived at the crime
scene around 9:00 a.m. the morning after the murder. There
was a large cotton field to the right of the house, and it
was surrounded by a lot of farmland. The victim's body
was found between the kitchen and family room inside the
home. It appeared that a shot had been fired through a
sliding glass door into the house, killing the victim.

Agent
Cicero recalled that there was a deep freezer in the carport,
which the TBI dusted for fingerprints and swabbed for DNA. A
jar of frozen jam was found sitting on top of the air
conditioning unit behind the house. The circumstances
indicated that the jam had been taken from the deep freezer.
A cigarette butt was collected from the road in front of the
house.

Sheriff
Troy Klyce with the Crockett County Sheriff's Department
responded to the crime scene shortly after midnight on August
5, 2011. The victim had been shot multiple times, and her
husband was present but disoriented with dementia-like
symptoms. Sheriff Klyce called the TBI to investigate the
scene.

Through
the course of his investigation, Sheriff Klyce learned that
Mr. Lilley had attempted to call Darrell Manning, who lived
nearby and helped the Lilleys with their land. Sheriff Klyce
made a recording of a message that Mr. Lilley left on Mr.
Manning's answering machine. Mr. Lilley was the one who
initiated contact with law enforcement, but it was not clear
how long it took him to dial 911 successfully. Sheriff Klyce
surmised that the victim was murdered after dark because a
flashlight was found on the floor near her body.

Sheriff
Klyce testified that two weeks after the murder, police
executed a search warrant of the Defendant's home in
which they found a box of .22-caliber cartridges. That same
day, police visited Roger Mosier's residence in Alamo
looking for Daniel Parker, who had failed to appear in court
on another matter. Mr. Parker was also a suspect in the
victim's murder. Mr. Mosier and Trina Parker, Mr.
Parker's mother, were there. Ms. Parker, who was
"frantic and really nervous," told Sheriff Klyce
that she had "the gun." Ms. Parker took the police
to her home and gave them the gun. Officers located Mr.
Parker later that night at the home of Dustin Ellis. The next
day, Mr. Parker accompanied officers to his home and turned
over the manufacturer's box that originally came with the
gun that was recovered from Ms. Parker. Mr. Parker advised
officers that he took the shells out of the gun, but the
police never located the shells.

Sheriff
Klyce said that several people were suspects during the
course of the investigation, including Brittany Bushart;
Dustin Ellis, because he was in possession of the murder
weapon at some point in time; the Defendant; and Daniel
Parker, who was eventually charged with the crime like the
Defendant. Sheriff Klyce stated that, to his knowledge, the
Defendant, Mr. Parker, and Mr. Ellis were all friends during
the time period at issue in 2011.

Detective
Penny Curtis worked for the Crockett County Sheriff's
Department at the time of the incident. Detective Curtis
responded to the scene during the early morning hours of
August 5, 2011. She observed two jars of strawberry jam
sitting on an air conditioning unit behind the house. The
jars were frosted over, leading investigators to believe they
had been sitting out for a while.

Detective
Curtis testified that in addition to the box of .22-caliber
cartridges found in the Defendant's bedroom when they
executed a search warrant, officers found a plastic cup with
a red sticky substance and more of the same sticky substance
on the floor. Detective Curtis searched the Defendant's
vehicle and found a camouflage bag containing a hammer and
assorted tools, gloves, and a full-face camouflage mask.
Detective Curtis recalled encountering Daniel Parker's
mother later that day, similarly to Sheriff Klyce. She
remembered that Ms. Parker said to them, "My son did not
kill the old lady."

Detective
Curtis testified that, with regard to the gun officers
recovered from Ms. Parker, Mr. Parker told them that he had
bought it from Dustin Ellis and then sold it to his mother.
She recalled that Mr. Parker informed the officers that there
were two spent shells stuck inside the gun when he bought it
that he had to pry out using a knife. The police never
located the shells. Detective Curtis stated that she spoke
with Debra Wright, who lived in the vicinity of the victim
but not necessarily within walking distance. Ms. Wright
advised that Mr. Parker came to her house on August 4th and
again on the morning of the 5th. Detective Curtis also spoke
with Homer Joe Young, who likewise lived in the vicinity of
the victim, and Mr. Young advised that he saw Mr. Parker
walking around the Chestnut Bluff-Broadview intersection at
5:30 p.m. on the day of the shooting.

TBI
Agent Cathy Ferguson assisted Crockett County law enforcement
with the investigation of the case. Upon her arrival on the
scene, Agent Ferguson learned that a family member had spoken
to the victim on the telephone sometime between 8:00-8:30
p.m. Agent Ferguson subpoenaed phone records for the
victim's home telephone in order to establish a time
frame because the victim's husband knew that he had
called 911 but did not know what time due to his dementia.
Approximately 27 calls were made between 10:26 p.m., when the
victim's husband attempted to call a neighbor, Darrell
Manning, and 11:58 p.m., when he successfully contacted 911.

Agent
Ferguson testified that she walked through the house to
document evidence, take photographs, and determine the scope
of the crime scene. Two jars of freezer jam were sitting on
the air conditioning unit behind the house. The jars were
"frosty" and appeared to have been recently removed
from a freezer. Agent Ferguson packaged the jars in a way to
preserve fingerprint evidence, and they were placed into a
temperature controlled TBI crime scene truck. However, the
jars spilled en route to Nashville, destroying any potential
fingerprints or DNA that might have been on the jars. Among
other evidence at the scene, Agent Ferguson noted that a
broken flashlight was found on the floor near the
victim's body, and the victim's purse containing $800
in cash was on a chair pushed under the dining room table.

Agent
Ferguson testified that she, as well as Sheriff Klyce and
Detective Curtis, went to Roger Mosier's house to look
for Mr. Parker and while there, Mr. Parker's mother told
them that she "ha[d] the gun." Ms. Parker took the
police to her home and gave them the combination to the safe
in which they found a gun. Agent Ferguson said that it was
her responsibility to follow up on collected evidence and
determine evidentiary value to the investigation. She
determined that none of the evidence she collected, such as a
shoe print and a cigarette butt, had evidentiary value. She
...

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